3/04/2007

A proposed amendment to House Bill 393 by the city of Rio Rancho that supporters of the bill say would negatively expand the definition of uses for eminent domain, is meeting resistance from supporters of the original bill, which includes Eddy County.

The Senate is also considering an identical bill, SB401.

Eminent domain gives the government the power to take private property against the owner's wishes.

The bill, introduced by Rep. Peter Wirth, D-Santa Fe, was passed unanimously by the Health and Government Affairs Committee and has been sent to the Judiciary Committee.

On Tuesday, the Eddy County Commission voted to e-mail the Judiciary Commission asking that it pass the bill that grew out of recommendations from the governor's task force.

Commissioner Lewis Derrick, who introduced the motion to send a letter asking that HB393 be passed as introduced, said, "It's not right for the government to take people's private property for economic development. We need to let them know in Santa Fe that we are against the amendment Rio Rancho is requesting."

Eddy County is currently looking at the purchase rights-of-way for the proposed loop road, and the commission was questioned last year by affected residents about what the county will do if they don't want to sell their land to the county.

"We are not in favor of taking anyone's land. We will have to look at another option if we don't get the right-of-way we need," Eddy County Manager Steve Massey said at a loop road public hearing late last year.

Former New Mexico Lt. Gov. Walter Bradley, who serves on the eminent domain task force and is lobbying for the passage of the bill as originally introduced, said he was happy to hear that Eddy County is supporting HB393 as is.

Bradley served two terms from 1995 to 2002 during Gov. Gary Johnson's administration.

"That's good news. I'm glad the county has taken this position. I hope more voice their concern about Rio Rancho's proposed amendment to the bill," he said.

Bradley said the amendment proposed by Rio Rancho is what he terms as the "Rio Rancho exemption."

"It would actually expand the definition of uses for eminent domain while HB393 limits the use. It would allow the taking of vacant land in older subdivisions. This could affect many areas of our state since we don't grow real fast," Bradley explained.

The issue of eminent domain was brought to national attention in 2005 when the U.S. Supreme Court redefined "public use" and allowed the city of New London in Connecticut to condemn property to take from one private owner and hand it directly to another private interest.

The court case — Kelo vs. city of New London — resulted in Gov. Bill Richardson deciding to convene a task force to study the issue of eminent domain the New Mexico.

"Although Kelo now allows for eminent domain abuse under the federal constitution, the task force members came together to study whether current law in New Mexico allows for eminent domain abuse, and if so, what could be done to fix New Mexico's laws and protect our citizens' private property rights," Bradley said.

In a 2006 editorial, Bradley noted that the task force discovered that some of New Mexico's eminent domain laws are so broadly written that currently every property in the state is at risk for a "Kelo-like" taking.

"Local governments are free to use New Mexico's incredibly broad condemnation authority to take virtually any property in the state and hand it over to private developers," he noted. "While most people recognize the need for eminent domain to accomplish traditional public uses, such as schools, roads, utilities and so on, based on the public comments our task force received, the overwhelming majority (99 percent) of our citizens made their position undeniably clear — New Mexico should respect the rights of individuals to keep what they have worked so hard to own, and should protect its citizens from eminent domain abuse."

Bradley said that the state's Metropolitan Act, the Community Development Law and the Urban Renewal Law are laws in New Mexico that were enacted nearly 30 years ago and are the only laws that authorize the use of eminent domain for economic development.

He said that these laws were never used until about two years ago when Rio Rancho first used the Metropolitan Redevelopment Act.

"Their experience showed us (the task force) that a Kelo-like taking of private property not only can happen in New Mexico, it did happen," Bradley said. Under the MRA the city selected a tract of property and prepared a general plan of the city's vision for that privately owned property's use. They held a public meeting to present their vision and then submitted it to their commission for approval or disapproval. Upon approval, the city sent out a request for proposals. Due to the size of these projects there are only a few developers who had the financial strength to bid. When accepted as a sole bidder, the developer then becomes the sole developer for the city for the designated privately owned property.

"That developer then contacts all the property owners notifying them the developer is the sole developer for the city and will be buying their property at market value. The developer, in the Rio Rancho case, contacted the property owners and informed them if they chose not to sell to the developer, the city would condemn their property," he said. "In fact, the city did file on about 10 percent of unwilling sellers. This is taking and the city attorney said they could use this same procedure to take a house or building if the city chose to do so."

Bradley said that although at this time no other city in New Mexico has use the MRA, at least two cities — Belen and Albuquerque — have seen Rio Rancho's example and are looking at using it.

"Farmington testified they want to use the MRA, but would like eminent domain out of the law because their property owners are fearful of the eminent domain gun," he said.

Bradley said that during testimony hearings before the task force, the task force discovered that the city of Albuquerque is using existing historical eminent domain statutes and ordinance to condemn hazardous and unsafe buildings for disposal or renovation.

"These ordinances were used to renovate the old Albuquerque High School. Albuquerque also accomplished a redevelopment project without using MRA or condemnation in northeast Albuquerque by contacting all the property owners and making them partners in the redesign. It was a win-win for all," Bradley said. "The point is that there are other avenues open to local governments to further economic development without condemning and taking private land."

Bradley said that Gov. Richardson voiced his support of the task force recommendations that were put into HB393, and he hopes the Legislature will also give its unanimous stamp of approval, ensuring that all citizens in the state will be protected from eminent domain abuse in the future.

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